dissenting.
I must respectfully dissent.
In this declaratory judgment action appellant, insurer, sought interpretation of cooperation clause of policy to permit independent examinations of multiple insureds. The judgment should be reversed.
Appellant presents a sole point which in summary charges the trial court erred by erroneously declaring and applying the law in ruling that the cooperation clause within its policy did not allow the insurer the right to examine two insureds separate and apart from one another.
The material facts are not in dispute, and the majority opinion presents an accurate account thereof.
The only issue before this court is whether the cooperation clause contained within the contract of insurance gives appellant the right to insist upon the examination under oath of the insureds, separately and apart from one another. This is a case of first impression in Missouri.
The purpose of a cooperation clause is obvious: Since, in most cases, the insurer has little or no knowledge of the facts surrounding the loss, and the insured, in most cases, has exclusive knowledge of such facts, the insurer has a right to require that the insured submit to an examination under oath to enable the insurer to acquire such knowledge and information as may aid it in the investigation, or as may otherwise be significant to the insurer in determining its liability under the policy. Such examinations under oath also enable the insurer to obtain information while it is still fresh.
It is not disputed that obtaining true and accurate information as to the facts surrounding a claimed loss is relevant to the *612insurer’s right to investigate the validity of the claim. Fraud is not suggested in the case at bar. It is logical that the taking of separate examinations under oath, without the insureds sitting in on each other’s examinations, would not only lead to more accurate information, but would also discourage or even prevent fraudulent claims. At the very least, separate examinations could lead to a recount of facts as the individual insured remembers them, and circumvents the possibility that the insured’s recollection of events will be subconsciously altered because of suggestion from prior testimony.
Respondents argue that the cooperation clause is ambiguous as to the taking of separate examinations and that an ambiguity in a contract of adhesion should be resolved against the appellant. While this is a correct statement of the law, this writer fails to see wherein the clause is ambiguous. Rather, the clause is simply silent on the issue of separate examinations. There is no ambiguity to be resolved.
Respondents also argue that the taking of separate examinations invades the confidentiality of spousal communication and violates the Husband-Wife privilege. Respondents’ point is not appropriate in this case because the prohibition against a husband and wife being permitted to disclose confidential communications made between them in their relation as husband and wife is a rule of evidence. The character of examinations under oath for investigatory purposes does not rise to the adversarial level wherein the rules of evidence are applicable.
This court should find the case of Shelter Insurance Co. v. Spence, 656 S.W.2d 36 (Tenn.App.1983), to be persuasive precedent. The facts in Spence are almost indistinguishable from those in this case at bar. The cooperation clause in Spence read as follows:
The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same....
The insureds refused to submit to examination under oath separate and apart, and the insurer filed a declaratory judgment action. The Tennessee Court of Appeals held that the insurer had a right to take separate examinations under oath of the married insureds, and the insureds did not have the right to be in the presence of each other during the taking of their examinations. That court set out procedural safeguards that the insurer must follow in order to secure separate examinations. Those safeguards are (1) the insurer must give the insureds a reasonable notice in writing, stating a definite time and place in the county of the insured’s residence, where the examination is to be held, and it must designate a representative before whom the examination is to be taken; (2) each insured may have his or her attorney present at the time of the examination, but the attorney cannot take part in the examination; and (3) after the examination is completed, the original and a copy is to be submitted to the insured for his signature. A copy of the statement taken is also to be furnished to the insured. See Spence, supra at 38.
In absence of authority in our own jurisdiction, our courts may look to decisions in other states and they become persuasive precedents. See Komosa v. Monsanto Chemical Co., 317 S.W.2d 396, 400 (Mo. banc 1958), Whitehorn v. Dickerson, 419 S.W.2d 713, 718 (Mo.App.1967), and Eyerman v. Mercantile Trust Co., N.A., 524 S.W.2d 210, 217 (Mo.App.1975).
In the present case the insurer has followed the applicable safeguards and this court should follow the holding in Spence.
This is not a case wherein the court is being asked to “make the contract”, but rather, there is nothing within the cooperation clause which prohibits the separate examinations. I cannot agree with the majority’s analysis that to authorize such examinations rewrites the policy. By its *613judgment, the trial court has erroneously interpreted and applied the law.
The judgment should be reversed.